On Monday, November 21st, California’s Voting System Panel (VSP) was slated to hold public hearings on whether to recertify Diebold TSX touchscreen machines. The California Election Protection Network (CEPN) issued a press release inviting concerned citizens to speak at the 10 a.m. hearing and attend a rally at Secretary of State Bruce McPherson’s office to encourage state officials to “send Diebold packing before Turkey Day.”

But when CEPN spokesperson Sherry Healy called to verify the hearing date and time, she received startling news.

“I asked Bruce McDannold in the Secretary of State’s office if the hearing is still on for Monday,” she told Raw Story. “He said, 'You’re half right. The VSP has been disbanded.' I asked why. He said, 'I can’t speak for the Secretary of State.’”

According to Healy, McDannold stated that a stenographer and recording device would be on hand to record any public comments.

CEPN issued a blistering press release criticizing the Republican Secretary of State, for the last-minute change in procedures. The release questioned the sincerity of those in government to publicly discuss issues with their constituents. “Is this the new government trend for public hearings – just give the people a room and a tape recorder?” the release asked.

Activists also contend that McPherson’s office failed to provide the 30-day notice required by law for a public hearing.

“We had to be full time detectives to find out when this hearing would be held,” Healy stated, adding that CEPN discovered the hearing announcement posted on an obscure portion of the Secretary of State’s website, not the usual location for public meeting notices.

Election reform experts who had filled out cards at prior meetings asking to be notified of future events received no notification, she added.

Machines Need Public Scrutiny

Healy expressed concern over a “secret” test done recently on Diebold TSX systems, without the public present. That test found only a 2% error rate, Healy said.

According to an analysis done in July of this year by Dr. David Jefferson of the Lawrence Livermore National Laboratory at the University of California, however, the error rates were much higher.

Jefferson, who is also a member of California’s VSP, found that software crashes and printer jams totally ten times higher than permitted by federal standards.

"They’re trying to slam dunk this hearing, the certification. They’re just going to ram it through,” Healy fretted. “The prize is 2006. We don’t trust this manufacturer. They are the worst in class. They are the Enron of voting systems."

Was the public properly notified?

Nghia Nguyen, McPherson’s press secretary, insisted that notification had been up on the website for “quite some time in compliance with the law,” in the usual location. “This clearly states that Monday’s hearing will be a public hearing,” said Nguyen, adding that public comment will also be accepted for one week following the hearing.

But Healy contends the hearing notice was moved. “We can’t find it today. They are updating it. It’s like hide and seek.”

Asked why the VSP was disbanded, Nguyen explained that a new Office of Voting System Technology Assessment has been established by McPherson. That office is headed by McDannon, a civil servant. “We will also have Steve Freeman, the professional consultant for us on evaluating voting systems, and our attorney, Michael Kanotz,” Nguyen added.

But some have raised doubts about Freeman’s impartiality. “Is there not an inherent conflict of interest in the fact that the sole consultant the SOS uses is also on the NASED qualification board… that credentials Independent Testing Authorities, et cetera?” asked CEPN member Judy Holder, noting that Freeman helped persuade the panel to issue conditional certification for the TSX systems based on assurances that approvals from NASED and the ITAs would shortly be issued. The TSX systems were later d-ecertified by California Secretary of State Kevin Shelley, a Democrat.

Tests thought not to meet state law

Freeman also traveled to Texas for a one-day test of TSX systems, Healy added. “Diebold installed the software and setup the machines for testing in McKinney, Texas prior to his arrival. The Procedures specified that all that installation and preparation was to be done by the technical consultant, and on a working model, here in California.”

Dan Ashby of the Voting Rights Force in Alameda County cites serious security breeches with Diebold GEMS tabulator software used to count votes, including the, “GEMS defect which allows VBA (visual basic script) to rewrite the access database containing the vote count without a trace… Dr. Hugh Thompson of Black Box Voting brought it to the attention of the VSPP in July 2003. Nothing has been done… The Secretary of State’s office has been made fully aware of the unsecured GEMS vote database and has refused to acknowledge they know.”

Ashby called for an injunction to enforce election codes. “At the state level, we need to enjoin the Secretary of State from certifying an election system that is clearly unsuitable,” he said.

A call by RAWSTORY to the office of California’s Attorney General was not immediately returned.

Motives questioned

Nguyen insists that activists’ concerns are overblown. “This Secretary of State really takes the time to read every public comment,” she said. “He does want to read everybody’s viewpoint.”

Healy, noting that some election officials in other states have taken money from election equipment vendors, questioned McPherson’s motivations for making last-minute procedural changes that she feels are aimed at minimizing public input. “Why is the Secretary of State’s office--that’s the election integrity clean room--doing this? Who are they working for? Are they working for the people, or are they working for the vendor?”

Asked whether McPherson has accepted any money from Diebold for his campaign or in any other capacity, however, Nguyen flatly denied the allegation. “That’s absolutely not true,” she said. “I verified it with our undersecretary and I can vouch for that, too. He is not accepting money from Diebold.”

'A foregone conclusion'

Healy also questioned the Secretary of State’s authority to “arbitrarily and without notice discard those procedures and panels” that were developed via public hearings. Such actions may violate due process, she suggested.

Meanwhile, election reform activists are gearing up for events on what they’ve dubbed "Early Turkey Monday."

“There will be a protest. We’re going to have people at the hearing as well as sidewalk demonstrations,” pledged Ashby, who expresses fear that the hearing’s outcome is a “foregone conclusion.”

He cites a quote from Thomas Paine: “The right of voting for representatives is the primary right by which all other rights are protected. To take away this right is to reduce a man to slavery.”